Can Facebook Trademark “Face”?

Facebook’s attempt to trademark the word “face” raises questions about the ability to trademark common words, and whether we can still use the word “face” without paying the social networking giant.

By

Adam Freedman

July 20, 2012

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What Is Trademark Infringement?

In fact, you might even be able to use the word “face” in your own trademark without getting into trouble. The legal standard for trademark infringement is whether a competing mark creates a “likelihood of confusion” among consumers. The general idea is to prevent unscrupulous competitors from misleading consumers and unfairly benefitting from the goodwill built up by others. So if a company starts selling personal computers under the name “Apple,” it’s probably infringing Apple’s trademark. But your corner grocer can still sell those round, shiny pieces of fruit under the name “apple.”

However, in some circumstances, trademark holders can also try to prevent others from using their mark even for non-competing purposes. In such cases, the trademark holder must establish that the other party’s use of a similar mark either “dilutes” or “tarnishes” his or her own mark. If, for example, somebody came out with a brand of Legal Lad diapers, I might have a legitimate trademark claim--though, of course, I’d be flattered, too.

“Fair Use” and “Parody” are the Most Common Defenses

If you find yourself on the wrong end of a trademark lawsuit, the main defenses are called “fair use” and "parody". “Fair use” occurs when you use the words of a descriptive mark in a generic way without specifically referring to a product. As for "parody", it’s exactly what it sounds like. You’re allowed to make fun of people and companies, even if it involves using a trademark. The boundaries of “parody” are not always clear. In fact, Facebook is in litigation right now with a site called “Lamebook,” on which people can post amusing photos and messages that appear on Facebook. Facebook says that Lamebook is both infringing and diluting its trademark. According to a Lamebook spokesman, however, Facebook just “can’t take a joke.”

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

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